Gaytan Engineering Co. v. Industrial Accident Commission

SHINN, P. J.

Proceeding to review an award of a death benefit and burial expenses to the widow and minor children of S. W. Rush, whose death occurred on July 22, 1948, as a result of an automobile accident. The question for decision is whether the commission correctly decided that deceased sustained injury arising out of and occurring in the course of his employment which proximately resulted in his death.

Mr. Rush was employed by Gaytan Engineering Company as a painter, and was sent from Los Angeles to the Army Air Base at Muroc, California. He provided his own transportation to the job by means of his pick-up truck. "While he was employed on the job he was compensated for the use of his truck in the employer’s business around the air base. His services at the airfield were discontinued the evening of July 21, 1948, under circumstances to be related. At about 9:30 p. m., he drove his truck north from the air base to U. S. Highway 466, proceeded west on that highway, and shortly thereafter suffered the fatal accident. Gaytan Engineering

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Company also had a painting contract with the Navy at Inyokern. The Muroc job was in charge of a foreman, Kenrey, and the Inyokern job in charge of a foreman, Velasco, both employees of the Gaytan Company. The disputed factual question was whether deceased was returning home to Los Angeles after the termination of Ms employment, or was on his way to Inyokern under the direction of Kenrey to continue his employment there.

We should read into the general findings of the commission specific findings upon all factual issues that tend to support the award and which have substantial support in the evidence. It will therefore be deemed that the commission found that Rush was on Ms way to Inyokern pursuant to instructions of Ms employer. There was no direct evidence that he was on Ms way to Inyokern at the time he met with his accident. He had some 80 or 90 miles to travel and was on the route of the main highways between Muroc and Inyokern although he could have reached Los Angeles by turning south instead of north at Mojave. There were considerably shorter routes he could have followed in going directly from Muroc to Los Angeles.

The foreman Kenrey testified that in the afternoon of July 2-lst he had been directed by Mr. Gaytan, president of the employing corporation, to transfer 10 men from Muroc to the Inyokern job and that this practice had been followed on previous occasions. He also testified that on July 21st additional painters were needed at Inyokern and could be spared from the Muroc job; that on the afternoon of the 21st he directed Rush and several other painters to go to Inyokern and that Rush agreed to go and also inquired as to whether he would be paid for the use of his truck at Inyokern. There was other testimony that Kenrey directed Rush to go to Inyokern and also testimony that when he left Muroc at about 9 :30 p. m., he stated he was going to Inyokern. Petitioner contends that all probative force of Kenrey’s testimony was destroyed by contradictory testimony and other impeaching evidence. Although petitioner’s argument is not without force it is unnecessary to discuss it. The testimony to which we have referred was sufficient as proof of the facts to which Kenrey testified; the question of Ms credibility is not one of law. We must therefore take as a factual basis for discussion of other questions that Rush at the time of his accident was on his way to Inyokern under an agreement with Ms employer that he would go there to work on the Navy job.